Legal Services and Healthcare – Common Misconceptions

There are several misconceptions surrounding the provision of legal services to the healthcare sector. To help clear up some of the confusion we spoke with Jonathan Hayden from Browne Jacobson LLP, and Jane Strobel from Capsticks Solicitors LLP, two of the suppliers under our Legal Services framework, plus our own internal legal team.

Misconception 1: It’s too expensive to get legal involved at the beginning of a project

On the contrary, customers generally find that when they get legal involved at the beginning they save money and time and avoid problems at a later point. Customers might think it would be cheaper to do the opposite, but Jonathan said: “By gaining a legal perspective in the early stages it can actually add value, helping to avoid more serious problems later by ensuring issues are dealt with appropriately from the outset.”

Jonathan points out that, particularly on commercial projects and procurement, when documents are not properly prepared or checked by a legal team, NHS organisations can find themselves with a “poor bargaining position”. The issue then escalates from prevention through to damage control, costing more and potentially affecting the delivery of critical services. He notes that disputes also consume valuable management time, and by investing upfront you are more likely to have a smooth-running project that requires less input from the busy senior managers.

Misconception 2: Brexit won’t affect healthcare in the UK

Although no one is 100% sure as to what the effect of Brexit will be on healthcare, it is likely that the NHS will be affected in some way. The challenge is working out what action can usefully be taken now – but organisations should speak to their advisers about the possible ramifications and contingency arrangements. It is also anticipated that customers will need legal assistance and advice to help them navigate issues in a post-Brexit legal landscape.

Jane said: “There is more of a possibility of changes with the way legal work is conducted for Trusts who license abroad. For those who fall in this category it is even more important to seek legal advice at the earliest point.”

Misconception number 3: I don’t need to check if I am completely GDPR compliant

The NHS has long since had systems and processes in place (although often quite complex) that help to safeguard and protect patient information. However, with the new GDPR regulations some Trusts have been caught out.

Jane states that with equal onus on the data owner and data provider it is more challenging for customers to provide an audit for all their stored information, provide details for the location of the data, and explain why they have collected the data, and how long they have kept it for, or plan on keeping it.
Some think it is perhaps too expensive to commission a legal audit, but Jane argues that the repercussions of a slight slip or misunderstanding can be extremely costly, making this expense seem relatively small.

HealthTrust Europe’s legal services framework is not only GDPR compliant but are provided by suppliers who have NHS experience and have advised Trusts how to fortify their systems in line with GDPR guidelines. The money and time spent upfront on advice to review GDPR practice can often be money well spent.

Misconception 4: Engaging a law firm will not help me improve the way my digital systems communicate with each other.

There is much focus on creating a more joined up approach throughout the NHS, to improve the level of care patients receive whilst relieving some of the stress they are currently experiencing. Capsticks Solicitors LLP and Browne Jacobson LLP are two of HealthTrust Europe’s specialist legal suppliers who can help customers implement the government’s digitalisation initiative, particularly alongside the effective development and implementation of an integrated care system.

Jane stresses that one way of achieving this is by becoming more informed about the way systems communicate with each other – an initiative NHS England has recently began to encourage through their emphasis on digitalisation.

Misconception 5: I can only use local suppliers within a Legal Services framework

Healthcare organisations once used location to choose suppliers, but this is no longer the case. With the advancement of technology, it has become even easier to get the support you need from a supplier, wherever they are located. Now, most of HealthTrust Europe’s suppliers are located across the world and have multiple offices within the United Kingdom. They work in partnership with their clients to achieve the best possible outcome for the best possible prices, regardless of geography.

Misconception 6: I can’t switch or use multiple law firms

Many NHS organisations source legal support based on historic arrangements and continue to use them based on an, often incorrect, assumption that they are “tied-in” to that supplier. On the contrary, in most cases those organisations (especially where they have not retendered for some time) will not bound into an exclusive arrangement and the framework will allow them to easily change suppliers based on their preferences and requirements. An advantage of using a Legal Services framework is also the ease of choosing multiple suppliers within the framework.

Jonathan suggests customers should review their current arrangements, and the capability of alternative providers within the market, to ensure they continue to receive the most appropriate service.

Competition is important

To ensure the very best value for money, public procurement should be open to competition. To encourage competition it is extremely important that the process is transparent and visible.
There are three types of competitions that allow a customer to select the most appropriate supplier. These are direct awards (fixed); mini competitions that are partly fixed; and mini competitions that are fully open.

HealthTrust Europe’s framework process ensures customers engage a firm which are specialists and whose offer is best suited to their needs. If the actual offering is a key factor and a desired supplier doesn’t offer the most competitive offer the customer will instead be paired with the supplier who best meets their criteria.

Browne Jacobson LLP is a national law firm with a leading health and care practice that supports clients across the public and independent sectors. Find out more here

Capsticks Solicitors LLP is a leading national law firm in the health, housing and social care sectors. Find out more here

Both of these suppliers along with others within the framework have ranked in key specialist areas in both the Chambers and Partners UK 2019 and Legal 500 2019. Our own internal legal team consists of five specialist solicitors with specialisms in Public Contracting and all are experts of Commercial Law.